RASUL v. BUSH (2004): A dangerously flawed decision!

In the recent GOP debate held in South Carolina and sponsored by Fox News, Fred Thompson called Mike Huckabee to task for his support of closing the U.S Naval facility at Guantanomo Bay in Cuba and moving the detainees to a facility in the U.S. Mike Huckabee defended his support for closing down the facility and moving the detainees; stating that the issue had been resolved by the U.S. Supreme Court’s decision in Rasul v. Bush back in 2004. However, Rasul v. Bush is a dangerously flawed decision and needs to be challenged and overturned. Hopefully, that will happen before our Nation’s ability to protect itself is seriously undermined.

In November of 2001, President Bush signed an executive order authorizing the formation of military tribunals for the detention and trial of foreign nationals apprehended in the “war on terrorism.” In early 2002, the relatives of 12 Kuwaiti nationals filed petitions of habeas corpus with the federal district court for the District of Columbia. These writs challenged the U.S. government’s practice of indefinitely holding foreign nationals captured in Afghanistan during the war against the Taliban regime and Al Qaeda in detention facilities without due process of the law. The detainees had been designated enemy combatants and therefore did not have access to counsel, the right to a trial, or knowledge of the charges against them.

The federal district court found that it lacked jurisdiction to issue writs of habeas corpus for aliens detained outside the sovereign territory of the United States and dismissed the actions with prejudice. The D.C. Circuit Court of Appeals, citing Johnson v. Eisentrager (1950), affirmed the decision, stating that nonresident enemy aliens have no access to American courts during wartime.

The Supreme Court, over the administration’s objections, agreed in November 2003 to hear the cases of the Guantánamo Bay detainees, specifically Rasul v. Bush and al Odah v. United States. It is not hard to figure which of the nine Supreme Court judges probably voted in favor of hearing this case. The arguments were heard on April 20, 2004.

The question before the U.S Supreme Court was, do the courts of the United States have the jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba?

In a 6-3 decision, the liberal activist members of the Court, relishing the opportunity to present President Bush a judicial slap on the wrist, found that the degree of control exercised by the United States over the Guantanamo Bay military base was sufficient to warrant the application of habeas corpus rights. Citing a sketchy list of precedents going back to mid-17th Century English Common Law cases, the Court found that the right to habeas corpus can be exercised in “all … dominions under the sovereign’s control.” Because the United States exercised “complete jurisdiction and control” over the base, the fact that ultimate sovereignty remained with Cuba was irrelevant. Further, the Court found that the right to habeas corpus is not dependent on citizenship status. The detainees were therefore free to bring suit challenging their detention as unconstitutional.

Choosing to follow real precedent and sound legal principles, Chief Justice Rehnquist, Justice Thomas, and Justice Scalia dissent, stating in their opinion:

  1. The Court today holds that the habeas statute extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdiction of all its courts. This is not only a novel holding, but also one that also contradicts a half-century –old precedent on which the military undoubtedly relied. The Court’s contention that Eisentrager was somehow negated by Braden, a decision that dealt with a different issue and did not even mention Eisentrager is implausible to the extreme.
  2. By spurious reliance on Braden, the Court evades explaining why stare decisis can be disregarded and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Instead, today the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it as never before been thought to be within their jurisdiction.
  3. Departure from our rule of stare decisis in statutory cases is always extraordinary; it ought to be unthinkable when the departure has a potentially harmful effect on the Nation’s conduct of a war. The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequences of bringing the cumbersome machinery of our domestic courts into military affairs.

Though shallow-thinking left-wing secular-progressive liberals certainly lauded this decision as a check on President Bush’s “arrogant abuse” of executive power by the judicial branch of the government, this decision will negatively affect the ability of the Executive and the military to protect the citizens of this country from future attacks by radical Muslim extremist groups or any other potential enemy or aggressor.

This case could have been guided solely by the interpretation of the habeas statute itself. This statute states “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. I would think that the meaning of this statute should be fairly clear to most intelligent people.

Our military maintains a presence in many forms in many locations around the globe. We have “de facto” control over what happens in those locations as well. However, are we to consider them all sovereign U.S. Territory? Guantanamo Bay is certainly outside of U.S. territory, and is therefore not within the respective jurisdiction of any district court.

There is also a very good case in precedent for this decision which Justice Scalia’s pointed to in his dissenting opinion. In Johnson v. Eisentrager, (1950), foreign detainees captured in China and detained in Germany sought habeas corpus review. The Eisentrager Court held that aliens who are not present within U.S. territorial jurisdiction couldn’t seek the writ.

Despite the clear language of the habeas statute and clearly applicable Supreme Court precedent, this Supreme Court decided that, as Justice Scalia states in his dissent, any enemy combatant being held by the United States in a foreign country during a state of war may now bring a petition against the Secretary of Defense.

If this decision does stand, in the future we may actually have to detain all captured enemy combatants within the United States’ borders; because this decision also gives enemy combatants held in foreign lands a big advantage over detainees held within U.S. territory. Detainees within the United States are limited to bringing their claims to a court in the district in which they are held. Terrorists detained in foreign lands, however, now suffer no such limitations. Terrorists now have the ability to choose the most “terrorist-friendly” courts in our judicial system. Given the Ninth Circuit’s rather extreme left ideological slant, it would seem rather likely that it will become the court of choice by terrorists involved in any future trials.

In 1950, the Supreme Court seemed to understand these implications. That is why, in Eisentrager, the Court held that such trials would not only hamper the war effort, but also, in effect, bring aid and comfort to the enemy. I think we would be hard pressed to imagine a more effective means of handicapping our commanders in the field, than to allow the same enemy they are charged with defeating to bring action against them in our own civil courts. It seems to me that the resulting litigations could be considered highly comforting to, and perhaps even an aid, to enemies of the United States.

Many of the detainees from Afghanistan were not captured by the United States military but rather by its ally, the Northern Alliance. The detainees were later transferred into U.S. custody. In future actions and in light of this decision, why would U.S. military commanders feel disposed toward taking detainees into custody? Future U.S. commanders may simply choose to allow its allies to keep their detainees rather than have their actions micromanaged by the civilian judiciary? This could certainly lead to much less humane treatment of detainees and to their being detained in places that are much, much worse than Guantanamo Bay.

Spain has recently suffered through the fiasco of attempting to handle terrorists within their civilian criminal justice system and failed miserably; even with a criminal court system that is much more friendly to prosecutors than the American criminal court system. The recent verdicts in Madrid stand as a stark warning that civilian criminal justice systems are not capable either of ensuring public safety or doing justice in serious terrorism cases … but that is the subject for my next post. 

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