Sunday, March 04, 2007

Throwing Braer Rabbit Into The Briar Patch

Many in academia and the legal community have been hard at work attempting to convince the judiciary to extend habeas corpus review to prisoners of war to challenge their designation as enemy combatants. In essence, these advocates are seeking to have civilian courts rather than the military determine the who is and is not an enemy combatant for the first time in the history of the Republic.

This begs the question of how exactly civilian courts would apply habeas review to go about this task.

Habeas corpus does not normally provide substantive review like a combatant status review board. Rather, as Justice Holmes observed: "What we have to deal with is not the petitioner’s innocence or guilt but solely the question whether their constitutional rights have been preserved." Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Accord Walberg v. Israel, 766 F.2d 1071, 1078 (7th Cir.) (Posner, J.), cert. denied , 474 U.S. 1031, 106 S.Ct. 546, 88 L.Ed.2d 975 (1985). Consequently, Courts engaging in habeas review generally do not weigh the evidence of the case against the petitioner. See, e.g., Ex Parte Lange, 85 U.S. (18 Wall.) 163, 175, 21 L.Ed. 872 (1874); Hyde v. Shine, 199 U.S. 62, 84, 25 S.Ct. 760, 50 L.Ed. 90 (1905); Ex Parte Quirin, 317 U.S. 1, 24 (1942). The question of evidentiary sufficiency is generally not cognizable in habeas corpus because it implicates no constitutional right. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979).

Consequently, even if POWs are among the classes of prisoners which may seek the writ, I am unsure under what authority the Court may use habeas review to conduct a substantive determination of the status of the petitioner as an enemy combatant. Rather, I would think that the Court is restricted to determining whether the military has violated any of a prisoner's procedural rights under the Constitution or federal statutes during the combatant status hearing.

This throws Braer Rabbit into the briar patch of determining whether a foreign POW has any procedural rights under the Constitution or federal statutes in the first instance and then whether military status hearings violate those rights. However, like that fictional rabbit, the courts should have no problem hopping through that thicket.

While there is no precedent for extending habeas corpus review to POWs to challenge military status hearings, there is some useful precedent when the Supreme Court extended habeas review of war crime trials of unlawful enemy combatants by military commission. Under that precedent, it is unlikely that enemy combatants challenging military status hearings will fair any better than the convicted war criminals in their habeas reviews.

In Ex Parte Quirin, 317 U.S. 1 (1942), German unlawful enemy combatants who had been tried and convicted of war crimes by military commission argued that they had the right to a civilian criminal trial. The Quirin Court summarized petitioners' case:

Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. In any case it is urged that the President's Order, in prescribing the procedure of the Commission and the method for review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with Articles of War adopted by Congress-particularly Articles 38, 43, 46, 50 1/2 and 70-and are illegal and void. Id. at 24.

The Court then noted the standards for its review:

We are not here concerned with any question of the guilt or innocence of petitioners. 4 Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty. Ex parte Milligan, supra, 4 Wall. 119, 132; Tumey v. Ohio, 273 U.S. 510, 535 , 47 S.Ct. 437, 445, 50 A.L.R. 1243; Hill v. Texas, 316 U.S. 400 , 62 S. Ct. 1159, 1161, 1162. But the detention and trial of petitioners-ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger-are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.

The Quirin Court then held that unlawful enemy combatants fell outside the protections of the 5th and 6th Amendments and Congress' Articles of War did not expressly bar the procedures used by the military commissions formed by the President. Consequently, the Court denied the petitions of the unlawful enemy combatants.

If Quirin is any guide, a court extending habeas review of the military status hearings used to determine if a Guantonomo detainee was an unlawful enemy combatant is still likely to find that the Gitmo detainees do not have a constitutional right to a status hearing by a federal court and the military status hearings do not expressly violate any of Congress' statutes. Indeed, Section 948)(a)(1)(ii) of the Military Commission Act of 2006 expressly recognizes that "Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense" can make the determination of whether a capture is an "unlawful enemy combatant."

7 comments:

Arne Langsetmo said...

[from the post]:

Habeas corpus does not normally provide substantive review like a combatant status review board. Rather, as Justice Holmes observed: "What we have to deal with is not the petitioner’s innocence or guilt but solely the question whether their constitutional rights have been preserved." Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Accord Walberg v. Israel, 766 F.2d 1071, 1078 (7th Cir.) (Posner, J.), cert. denied , 474 U.S. 1031, 106 S.Ct. 546, 88 L.Ed.2d 975 (1985). Consequently, Courts engaging in habeas review generally do not weigh the evidence of the case against the petitioner. See, e.g., Ex Parte Lange, 85 U.S. (18 Wall.) 163, 175, 21 L.Ed. 872 (1874); Hyde v. Shine, 199 U.S. 62, 84, 25 S.Ct. 760, 50 L.Ed. 90 (1905); Ex Parte Quirin, 317 U.S. 1, 24 (1942). The question of evidentiary sufficiency is generally not cognizable in habeas corpus because it implicates no constitutional right. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979).

Wow. Nice "research". Change a few words, and presto, voila!, we have some of Bart's 'original thinking'....

Funny Bart didn't cut'n'paste from the rest of his source:

"Notwithstanding these precedents, the Supreme Court has recently changed course and, in a series of cases, acknowledged that factual innocence may be of great significance in habeas corpus cases. See generally Herrera v. Collins , 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (assuming that actual innocence may make out a claim in a capital case); Schlup v. Delo , 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (noting that actual innocence will provide the court a "gateway" to reach otherwise defaulted claims). See generally Carriger v. Stewart , 132 F.3d 463, 477 (9th Cir. 1997) (en banc), cert. denied , --- U.S. ---, 118 S.Ct. 1827, 140 L.Ed.2d 963 (1998)."

Cheers,

Arne Langsetmo said...

Say, just out of curiosity, Bart: How did you get from this:

"Relying on this cardinal principle, the federal courts have often noted that innocence is not a pre-requisite for relief in a habeas corpus case. In Justice Holmes’ words, 'what we have to deal with is not the petitioner’s innocence or guilt but solely the question whether their constitutional rights have been preserved.' Moore v. Dempsey , 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Accord Walberg v. Israel , 766 F.2d 1071, 1078 (7th Cir.) (Posner, J.), cert. denied , 474 U.S. 1031, 106 S.Ct. 546, 88 L.Ed.2d 975 (1985) ('Guilty as [petitioner] undoubtedly is -- unworthy member of the community as he undoubtedly is -- he was entitled to a better procedure.')."

to this:

[Bart]: Habeas corpus does not normally provide substantive review like a combatant status review board. Rather, as Justice Holmes observed: "What we have to deal with is not the petitioner’s innocence or guilt but solely the question whether their constitutional rights have been preserved." Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Accord Walberg v. Israel, 766 F.2d 1071, 1078 (7th Cir.) (Posner, J.), cert. denied , 474 U.S. 1031, 106 S.Ct. 546, 88 L.Ed.2d 975 (1985).

They really don't say the same thing, do they?

They're saying that even the guilty are afforded habeas protection if they're claiming errors in process. You twist that into "they won't even look at the merits".

Is your personal contribution to this stuff you cut'n'pasted your mischaracterisation of what they are saying?

Cheers,

Arne Langsetmo said...

On another note, Bart, here's something for your consideration from the Moore v. Dempsey case from which you cited [indirectly, apparently without reading it] the language of the august Justice Holmes:

"We shall not say more concerning the corrective process afforded to the petitioners than that it does not seem to us sufficient to allow a Judge of the United States to escape the duty of examining the facts for himself when if true as alleged they make the trial absolutely void. We have confined the statement to facts admitted by the demurrer. We will not say that they cannot be met, but it appears to us unavoidable that the District Judge should find whether the facts alleged are true and whether they can be explained so far as to leave the state proceedings undisturbed."

In saying so, Justice Holmes reversed the lower court's dismissal of the petitioners' habeas petition.

Read the case, folks (and you too, Bart). I urge you, READ IT (and the dissent): Justice Holmes was rebuking the fine Southerers here who thought that the only choices were a rushed, rigged trial or an outright lynching....

Just another page of Bart's slipshod "scholarship".....

Still want to cite this case, Bart?

LOL.

Cheers,

Bart DePalma said...
This comment has been removed by the author.
Bart DePalma said...

arne:

BD: Habeas corpus does not normally provide substantive review like a combatant status review board.

"Notwithstanding these precedents, the Supreme Court has recently changed course and, in a series of cases, acknowledged that factual innocence may be of great significance in habeas corpus cases.


Which part of my use of the term "normally" did you not understand? There are exceptions which prove the rule in nearly every area of law. The handful of cases to which you cited are capital cases, which usually draw far stricter scrutiny due to the final nature of the punishment. We are not dealing with capital cases here, so these opinions are inapposite to the Gitmo petitions.

Say, just out of curiosity, Bart: How did you get from this...to this:

As you well know, I did not use that source to arrive at my post. That is your source. I linked to my source in my post and quoted it nearly vebatim. Your implication that I used your source and then misrepresented it in my post is a lie.

arne, I can see you have brought your old games of misrepresenting my posts with you here. If you want me to respond, stop your games and make a point. Otherwise, I have better things to do than waste my time playing your games.

Arne Langsetmo said...

Bart says:

There are exceptions which prove the rule in nearly every area of law.

You do realise how silly this phrase -- "there are exceptions which prove the rule" -- is in a court of law, I hope.

The handful of cases to which you cited are capital cases, which usually draw far stricter scrutiny due to the final nature of the punishment.

Ummm, why? Where do you get this "final nature"? While I agree with you that the finality of the death penalty makes subsequent developments (more uncovered evidence, etc.) less likely to be of avail in righting any potential wrong (and this probably also was onthe mind of the justices), I don't think that's the one thing they had in mind. Keep in mind that "actual innocence' habeas cases tend to come late in the process ("new evidence" can usually be used to ask for a new trial at the state level if brought up early enough); if a prisoner loses on these type of habeas cases, that's pretty much the end of the road for them whether they're executed or not.

While the wrongful imposition of a death penalty is the "quintessential miscarriage of justice", that's not what the Schlup v. Delo court was concentrating on. The death penaly is a sentence. Factual innocence goes to the verdict. Here's what the Schlup court said:

"Claims of actual innocence pose less of a threat to scarce judicial resources and to principles of finality and comity than do claims that focus solely on the erroneous imposition of the death penalty. Though challenges to the propriety of imposing a sentence of death are routinely asserted in capital cases, experience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. See supra, at 22-23. To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful. Even under the pre-Sawyer regime, "in virtually every case, the allegation of actual innocence has been summarily rejected." 40 The threat to judicial resources, finality, and comity posed by claims of actual innocence is thus significantly less than that posed by claims relating only to sentencing.

"Of greater importance, the individual interest in avoiding injustice is most compelling in the context of actual innocence. The quintessential miscarriage of justice is the execution of a person who is entirely innocent. 41 Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the "fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring). See also Starkie, Evidence 751 (1824) ("The maxim of the law is ... that it is better that ninety-nine ... offenders shall escape than that one innocent man be condemned"). See generally Newman, Beyond "Reasonable Doubt," 68 N. Y. U. L. Rev. 979 980-981 (1993).

"The overriding importance of this greater individual interest merits protection by imposing a somewhat less exacting standard of proof on a habeas petitioner alleging a fundamental miscarriage of justice than on one alleging that his sentence is too severe."

Note also that the Schlub court explains why the consideration of actual innocence will not unduly burden the court system and interfere unduly with state interests in "finality, comity, and conservation of scarce judicial resources" ... and also why there are so few cases dealing with this inquiry.

We are not dealing with capital cases here, so these opinions are inapposite to the Gitmo petitions.

Ummm, it is you that were making claims about the scope of habeas corpus review and citing to these cases, such as Moore v. Dempsey (yes, you did!). If now you want to talk about Guantanamo petitions and distingush them from habeas petitions for review of criminal convictions, WTF did you even bring them up?!?!?

[Arne]: Say, just out of curiosity, Bart: How did you get from this...to this:

As you well know, I did not use that source to arrive at my post...


I found you source, Bart. Just a comparison of the language (and the quotes and verbatim string cites) is sufficient to show that. See below.

... That is your source. I linked to my source in my post and quoted it nearly vebatim....

Liar. Here's your link (with the link and surrounding text "Habeas corpus does not normally provide substantive review like a combatant status review board. Rather, as Justice Holmes observed: 'What we have to deal with...'")

"Dempsey", "Walberg", "Lange", and "Posner" are found nowhere on that page. But the string cites (and the Holmes quote) match exactly to the one I found (how do you think I found it, you doofus?). The three parts ("Habeas...", "Consequently...", and "The question..." of that paragraph are culled from different parts of the link I supplied [albeit with the wording changed insubstantially]. Maybe someone else cribbed it from there and you cut'n'pasted from that, or the Findlaw peple did that to someone else, but regardless, your link says nothing like what you put in your paragraph, while my quote has it all, essentially verbatim.

... Your implication that I used your source and then misrepresented it in my post is a lie.

Lets' put it to a jury. Care to point out where your link mentions "Dempsey", "Walberg", "Lange", and "Posner"? LOL....

arne, I can see you have brought your old games of misrepresenting my posts with you here. If you want me to respond, stop your games and make a point. Otherwise, I have better things to do than waste my time playing your games.

"Wauuuugghh, wauuuuugghhh. Arne spanked me again...."

Say, you ever going to admit you miscited Brown II?

Oh, any response to the substantive commentary and criticism in my second and third posts? Doubt it....

Cheers,

Arne Langsetmo said...

Say, Bart, didn't you once say you were on law review at FSU?!?!?

Just out of curiosity, is this post of yours a demonstraiton of cite-checking methods and article review (not to mention paper writing) that they teach/employ there?

Maybe we ought to ask them about this....

Cheers,