Boumediene v. Bush, Another View -- Judicial Oversight of Terrorist Detainment Essential to Freedom

By Jonathan Winer

Jeffrey Imm's passionate denunciation of the majority opinion in Boumediene v. Bush, published here, takes vigorous exception to the principle that the federal courts should have the right to analyze the detention of persons that a U.S. executive authority has deemed to be "unlawful foreign enemy combatants."

For others, and I am among them, the principle that is being vindicated in this decision is fundamental to protecting our liberty, namely, the right of each person to have fully independent oversight of an authority's decision to hold them in prison.

The Boumediene decision rejects the ludicrous position of the Administration that the U.S. does not have sovereign control over the prisons of Guantanemo, but that Cuba does. If the U.S chooses to run a prison and hold people at a location, entirely under the control of the U.S., it is deny reality to suggest that the U.S. is not exercising "sovereignty" over those prisoners. (More importantly, it is to deny a wrongly-imprisoned person any recourse. As a former Executive branch official involved with federal law enforcement, I can state the obvious -- governments actually do make mistakes, and when mistakes are made, they even sometimes try to cover them up.) As the U.S., and no other authority, is holding them prisoner, the question boils down to whether there should be judicial review of the decision to hold the person prisoner, or if the executive should have the right to set the rules for any review of its own conduct in holding them.

Justice Scalia takes the view that independent judicial review of the executive's decision will cause terrorists to succeed in more terrorist attacks, citing the finding of five Senators in a Minority Report not joined in by the Senate majority that 30 prisoners already released from Guantanamo by the U.S. military had reportedly returned to terrorism. This Senate Minority Report finding was in turn based not on independent fact-finding, but on a 2007 CNN report citing Pentagon spokesmen for the number. Because the Pentagon did not specify the names of each of the 30 persons, the accuracy of the statement is not verifiable.

A counter to the Pentagon contention cited by Justice Scalia and the five Senators from the minority is a journalistic investigation into terrorism suspects held at U.S. prison camps around the world whose findings were released on June 14, 2008, after the Boumediene decision. The investigation found that possibly hundreds had been wrongly imprisoned. The eight-month investigation in 11 countries on three continents undertaken by McClatchy publications found that the U.S. wrongfully imprisoned suspects in Afghanistan, Cuba and elsewhere on the basis of "flimsy or fabricated evidence, old personal scores or bounty payments." McClatchy said it interviewed 66 released detainees, more than a dozen local officials, primarily in Afghanistan and several U.S. officials and former officials as well as thousands of pages of U.S. military tribunal documents and other records. The McClatchy report included the following disturbing admission: "As far as intelligence value from those in Gitmo, I got tired of telling the people writing reports based on their interrogations that their material was essentially worthless," a U.S. intelligence officer said in an e-mail.

Justice Scalia's prediction that granting detainees habeas corpus rights will lead to more terrorist attacks seems to rely on the premise that his fellow federal judges will willy-nilly release terrorists from confinement, when the U.S. military would have continued to hold them. Evidence for that proposition is not cited by Justice Scalia, beyond a parade of imagined horribles relating to the difficulty of trying people based on classified information. Perhaps that is why we call it "an opinion."

Clearly, some number of those held at Guantamano are dangerous terrorists indeed; but in that case, there should by now, six and a half years after the September 11 attacks, be actual evidence of that threat, and a basis for trying them. As the Senate found in its consideration of the Bush Administration's handling of the Guantanamo military tribunal system, "the critics’ assertion that habeas proceedings in federal court will somehow lead to the sharing of classified information with terrorists demeans our federal judiciary and ignores the procedures established by this body to insure that classified information is safeguarded in federal proceedings. All federal judges are cleared to view classified information, and they have significant discretion in determining what kinds of evidence to consider, and what witnesses, if any, to allow, in habeas proceedings, which lack many of the protections for defendants present in actual trials. Many detainee habeas claims could therefore be resolved with no recourse to classified documents at all after a determination by a judge that such evidence is not needed to make the baseline showing that the detainee is properly held. Where classified evidence is relevant, courts and judges are well-equipped to deal with such evidence without compromising national security. A distinguished group of former federal judges noted in a letter to Congress [in 2006] that the federal courts have long effectively and efficiently handled habeas complaints and cases involving classified and top secret information, and that ‘‘the habeas statute and rules provide federal judges ample tools for controlling and safeguarding the flow of information in court."

The majority opinion takes a longer view, and one that recognizes that our country has repeatedly come under threat while retaining its commitment to maintaining freedom. In the words of Justice Kennedy, "Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise ofthose powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been incustody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek."

Rule of law is a fundamental means of protecting freedom; we are stronger for judicial oversight of the war on terrorism and of individuals accused of terrorism, not weaker.

TrackBack