Loose Canons

Habeas Corpus?

But where to, Judge?

By 3.20.05

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The ancient writ of habeas corpus -- literally, "deliver the body" -- is the legal remedy for illegal detention by the executive branch. Abe Lincoln, in his most dictatorial act, suspended the writ in 1861, trying to suppress secessionist sentiment in Maryland. As dictatorial acts go, the March 12 order of U.S. District Judge Rosemary Collyer -- banning movement of Yemeni detainees at Gitmo back to Yemen -- ranks right up with Old Abe's.

The Gitmo detainees -- the kind of people Gen. Richard Myers once described as being eager to chew through the hydraulic control lines of an aircraft in flight just to kill the pilot -- are being kept for months and years to pump the last bit of useful intelligence out of them. Once we've got all we think we can get, these people -- none of whom are U.S. citizens -- are being shipped to other nations for release or continued detention. Some of the places we're sending them back to are the selfsame ratholes they crawled out of, and the destination's government may not treat them with all the kindness and understanding they would receive in the editorial boardroom of the New York Times. Which draws liberal activists into the courts at the speed of light.

The first significantly absurd decision the libs obtained extended the writ of habeas corpus to the Gitmo detainees. In the June 2004 Rasul v. Bush decision, the Supremes held that the detainees had the right to go to U.S. federal court to seek release from their detention. The best criticism of Rasul comes, not unexpectedly, in the dissent penned by Justice Scalia and joined in by Chief Justice Rehnquist.

Scalia's dissent says that the decision "extends to aliens detained by the United States military overseas, outside the borders of the United States and beyond the territorial jurisdictions of its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied [in establishing the Gitmo detention facility]...This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field." Now, Judge Rosemary Collyer of the Washington, D.C., federal court -- a Bush appointee -- has moved Rasul an intolerable quantum leap farther.

In Abdah v. Bush -- decided on an emergency motion two weekends ago -- Collyer blocked transfer of 13 Yemeni detainees to Yemen on the grounds that the transfer would take the prisoners out of the jurisdiction of the court and thus prevent the court from determining the legality of their initial capture. The government is transferring detainees without prior notice to them. The judge is shocked at the outrage of no-notice transfers. She thinks it's positively awful that we may be telling the receiving governments that we'd appreciate it if they keep these slugs off the streets. Her opinion says, "The court need only assess whether removing the detainees from the jurisdiction of the court -- while insisting on their continued detention -- is subject to a temporary injunction so that the legality of that detention ab initio can be determined and the trial judge can decide whether prior notice is appropriate." (Emphasis added.)

There are only two objections to Collyer's decision. The first is the initial paragraph of Article 2, Section 2, of the Constitution which appoints the President commander-in-chief of the armed forces and empowers him to conduct our wars. The second is the next paragraph of Article 2, Section 2, which empowers him to conduct our foreign policy. Other than that, her opinion's just fine.

COLLYER HAS TRASHED THE Constitution in so many ways it's both horrific and outrageous. She is content to make this ruling because "[t]he court can see no injury to the Government from granting a temporary injunction here." Right. The only good part of her order is that it expires tomorrow, and by then she may have come to her senses. But what if she hasn't?

Judge Collyer has put the court on the battlefield to determine whether the original capture of terrorist suspects ("...that detention ab initio") is legal or illegal. By logical extension, her next decision on an individual case -- perhaps one of the Yemenis -- could hold the detention illegal because excessive force was used to take a man down, or say that the evidence at hand at the time of the capture was insufficient to justify taking him into custody at all. What arrogant nonsense.

Once again, the courts are proving that the lowliest private has better judgment than our legal elites. Any Marine fresh out of boot camp knows that if a guy is sitting in a house with explosives and wires all around him, he's someone who needs to be: (a) shot at least twice; or (2) handcuffed and thrown in the back of a truck to be turned over to the interrogators back at the base. If Collyer's decision is allowed to stand (which, thankfully, seems unlikely in the extreme) the effect will be to eliminate option (b) in too many cases of doubt.

Sending detainees to other countries is an exercise of executive power and discretion. The "rendition" policy, which sends detainees to other nations where interrogation may include torture, is both troubling -- because it may, in some cases, put us in the position of tolerating torture -- and perfectly legal. Collyer's decision, which allows rendition only for the purpose of releasing the detainee from any imprisonment, puts our government in the position of guarantor of the good behavior of other governments. That, among other things, is beyond her power to do.

THE COURTS, WHETHER THEY like it or not, have no jurisdiction over the exercise of these constitutional executive powers. If they persist in this action, we may find ourselves in a constitutional crisis the likes of which we have never seen. President Bush -- unlike his predecessor -- won't disobey the courts. And he has a better option.

The President should issue an executive order empowering the CIA and DoD to transfer any detainee to any country for release, continued detention or further interrogation by methods other than torture. Better still, the President should also ask Congress for legislation taking away the courts' jurisdiction over detainee matter. If the Senate Dems try to filibuster it, this would be the best occasion to "go nuclear" to resolve the filibuster issue. (It would be good for the Senate go nuclear before Iran does, tactically brilliant to do so on this issue, because it directly involves the courts.)

How shall we fight the war we're in? Who shall we take prisoner and when, under what conditions and to whom shall we release them? The Constitution permits only one branch of government to decide those questions: the executive, not our increasingly injudicious judiciary.

TAS contributing editor Jed Babbin is the author of Inside the Asylum: Why the UN and Old Europe Are Worse Than You Think (Regnery, 2004).

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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. He is coauthor (with Herbert London) of the new book The BDS War Against Israel. You can follow him on Twitter@jedbabbin.